93 Decision Citation: BVA 93-00626
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-42 127 ) DATE
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THE ISSUES
1. Entitlement to service connection for postoperative
residuals of adenocarcinoma of the left lung.
2. Entitlement to an increased evaluation for postoperative
residuals of a left lung disability with chronic obstructive
pulmonary disease, rated 30 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
R. A. Caffery, Counsel
INTRODUCTION
The veteran served on active duty from February 1943 to
August 1963. In a May 1990 rating action, the Regional
Office, New Orleans, Louisiana, denied entitlement to
service connection for postoperative residuals of
adenocarcinoma of the veteran's left lung and continued a
30 percent evaluation for the veteran's service-connected
left lung condition. The veteran submitted a notice of
disagreement in June 1991. Later in June 1991 a statement
of the case was issued on the question of entitlement to an
increased evaluation for the service-connected left lung
condition. A substantive appeal was received in July 1991.
The regional office also held that the veteran had not
submitted a timely notice of disagreement with regard to the
denial of service connection for postoperative residuals of
adenocarcinoma of the left lung. He was sent a supplemental
statement of the case in August 1991. The case was
initially received at the Board of Veterans' Appeals
(hereinafter the Board) in September 1991.
In March 1992 the Board determined that the veteran's notice
of disagreement with the May 1990 rating action denying
entitlement to service connection for postoperative
residuals of adenocarcinoma of the left lung had been timely
submitted. The appeal was granted to that extent. The case
was remanded with regard to the remaining issues for further
development. The case was returned to the Board in May
1992. In October 1992 the Board obtained an opinion from
the Armed Forces Institute of Pathology regarding the
veteran's claim. The veteran is represented by The American
Legion and that organization submitted written argument on
his behalf in November 1991 and November 1992. The case is
now ready for further appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in substance, that service connection
should be established for postoperative residuals of
adenocarcinoma of the left lung since in 1956 he had an
operation at the Fitzsimons Army Hospital in Denver where
the upper one-half of the upper lobe of his left lung was
removed and the left lung gradually died following that
operation. The left lung was practically nonfunctioning
when it was removed at the VA Medical Center, Shreveport, in
1990. The veteran maintains he firmly believes that the
gradual deterioration of the left lung while on active duty
to the point it was practically nonfunctioning in 1989
caused cancer to develop in the weakened lung. It is
further maintained that an increased evaluation should be
granted for the veteran's service-connected left lung
condition since he has severe exertional dyspnea and marked
impairment of health. He is restricted to limited body
movement and has to move about very slowly with all forms of
exercise prohibited. Any exertion of the body causes
instant shortness of breath and limitation of body action.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), following review and consideration of all
evidence and material of record in the veteran's claims file
and for the following reasons and bases, it is the decision
of the Board that the evidence of record does not support
the veteran's claims for service connection for
postoperative residuals of adenocarcinoma of the left lung
or for an increased evaluation for the service-connected
left lung condition.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appellant's appeal has been obtained by
the regional office.
2. Adenocarcinoma of the veteran's left lung was not
demonstrated either during active military service or for
many years following his release from active duty, and is
unrelated to any incident of service.
3. The adenocarcinoma of the veteran's left lung was not
caused by and is not related to a service-connected disease
or disability.
4. The veteran's service-connected left lung disorder is
manifested primarily by some shortness of breath on exertion
and a need for medication and an inhaler. Pulmonary
function studies reflect moderate obstructive ventilatory
impairment.
5. The veteran's service-connected lung condition is
productive of no more than moderate disability.
CONCLUSIONS OF LAW
1. Postoperative residuals of adenocarcinoma of the
veteran's left lung were not incurred in or aggravated
during service; may not be presumed to have been incurred in
service; and are not proximately due to or the result of a
service-connected disease or disability. 38 U.S.C.A.
§§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 1991);
38 C.F.R. §§ 3.307, 3.309, 3.310 (1991).
2. An evaluation in excess of 30 percent is not warranted
for the veteran's service-connected left lung condition.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4,
Diagnostic Codes 5297, 6602, 6603, 6814.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
We note that we have found the veteran's claims are "well
grounded" within the meaning of 38 U.S.C.A. § 5107(a);
effective on and after September 1, 1989. That is, we find
that he has presented claims which are plausible. We are
also satisfied that all relevant facts have been properly
developed.
I. Background
A review of the veteran's service medical records reflects
that he was treated and hospitalized on several occasions,
beginning in 1949 for spontaneous pneumothorax of the left
lung. In February 1956 a thoracotomy and partial lobectomy
of the left upper lobe were performed. The left seventh rib
was removed during the surgical procedure. When the veteran
was examined for retirement from military service in March
1963 the veteran reported that he had had dyspnea on
exertion since the surgery. Breath sounds were diminished
on the left as compared to the right. The left thoracotomy
incision was well healed. The veteran's service medical
records do not reflect the presence of carcinoma of the left
lung.
When the veteran was examined by the VA in December 1963 he
stated that he only felt short of breath if he exercised.
Examination of the respiratory system showed no cough or
dyspnea. There was a left thoracotomy scar. The left side
of the chest was favored and slightly smaller than the
right. Expansion was good and lung fields were resonant.
Breath sounds were good, bilaterally. No rales were heard.
A chest X-ray study showed evidence of a left thoracotomy
with removal of the seventh rib. There were fibrocystic
changes in the left apex and no active infiltration at any
point. The right lung field was clear. Diagnoses were made
of fibrocystic changes of the left lung; history of
spontaneous pneumothoraces; and left thoracotomy.
By rating action dated in January 1964 service connection
was granted for residuals of spontaneous pneumothorax with
thoracotomy and rib removal, evaluated as 10 percent
disabling, and multiple cysts with fibrocystic change of the
left lung, rated noncompensable.
In August 1989 the veteran submitted a claim for an
increased evaluation for his service-connected left lung
condition.
The regional office thereafter received several VA
outpatient treatment records reflecting treatment of the
veteran from 1985 to 1989. When he was seen in April 1988
he reported that his dyspnea on exertion for the last couple
of years had been getting worse. The lungs were clear to
auscultation and there was full expansion. When he was seen
in October 1988 his chronic obstructive pulmonary disease
was reported to be stable. In April 1989 the veteran
continued to have shortness of breath with exertion.
The veteran was examined by the VA in October 1989. He
reported shortness of breath on exertion that had become
progressively worse. He stated that he could barely walk
about the house or go up and down the steps into the house
or walk around the yard. He also had a cough. He had not
noticed any wheezing in recent years. He reported
occasional tightness in the chest and rare episodes of a
feeling of chest pain. It was indicated that he had been
taking Theophylline, 300 milligrams twice daily, for several
years and used an inhaler, which did not afford him much
relief.
On examination the veteran was 5 feet 11 inches tall and
weighed 173 pounds. The chest showed an increased
anteroposterior diameter. The chest was 37 inches on
expiration and deep inspiration was 39 inches. The breath
sounds were coarse and were distant over the lower lung
zones, bilaterally. He had a left chest scar following the
outline of where the seventh rib had been removed for a
thoracotomy. That was well healed and nonsymptomatic.
A chest X-ray study showed the apical pleura to be
moderately thickened and there were a few strands of opacity
leading from the hilus into the upper medial left lung,
considered probably scarring. Pulmonary function studies
were conducted and were interpreted as revealing moderate
obstructive ventilatory impairment. The diagnosis was
fibrocystic lung disease with a history of repeated episodes
of pneumothorax.
By rating action dated in December 1989, the evaluation for
the veteran's service-connected left lung condition was
increased from 10 percent to 30 percent.
The veteran was hospitalized at the VA Medical Center,
Shreveport, in January 1990. It was indicated that he had
been found to have a 2- by 3-centimeter opacity of the left
lung on a chest X-ray in October 1989. He had been sent for
a followup CT scan of the chest that had shown a soft tissue
mass in the mid of the left hemithorax. The veteran
reported that he had had progressive shortness of breath
over the past five years. However, it was indicated that he
could walk for miles as long as it was flat, but he had
dyspnea on exertion with any incline. He had had no cough
or hemoptysis. He denied fever, chills, weight loss, night
sweats or wheezing. The veteran was again admitted to the
hospital later in January 1990. He underwent a biopsy and
pneumonectomy. The diagnosis was squamous cell carcinoma of
the left lung.
The veteran was again examined by the VA in April 1990. He
indicated that, after his primary recovery from surgery,
radiation therapy was begun and he had completed that in
March. He indicated that he had had a fairly severe cough,
productive of yellow sputum until two weeks prior to the
examination. He was still taking antibiotics with a
considerable improvement of the cough. It was reported that
he had no appetite and had lost weight from 178 pounds to
148 pounds. He reported that he had had considerable pain
in the left chest, especially in the area of the incision.
On examination the left thorax barely moved with
respiration. There were moderate wasting and atrophy of
muscles surrounding the left upper thorax and to some extent
the lower thorax. The left thorax did not expand on deep
breathing. Faint breath sounds were heard and those were
coarse. The veteran had a left thoracotomy scar that was
well healed and slightly tender to palpation.
The following diagnoses were recorded: Adenocarcinoma of
the left lung, status postoperative left pneumonectomy; old
fibrocystic lung disease with history of multiple
spontaneous pneumothorax episodes; and anemia from chronic
disease. It was indicated that he was slightly cyanotic
with obvious respiratory insufficiency. The examiner
indicated that, in his opinion, the adenocarcinoma was not
secondary to the service-connected lung condition.
The veteran was again hospitalized by the VA in August 1990
for a bronchopleural fistula.
II. Analysis
As indicated previously, a review of the veteran's service
medical records did not reflect the presence of
adenocarcinoma of the left lung. That condition was not
shown when he was examined by the VA shortly after
separation from service, in December 1963. A left lung mass
that was found to represent adenocarcinoma was initially
medically demonstrated on a chest X-ray study in October
1989, many years following the veteran's release from active
duty. Thus, under these circumstances, it is apparent that
service connection for the adenocarcinoma of the veteran's
left lung would not be warranted either on a direct basis or
under the presumptive provisions of the law. 38 U.S.C.A.
§§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307,
3.309.
The veteran has contended that there is a causal
relationship between the adenocarcinoma of the left lung and
his service-connected left lung disorder. He has maintained
that the gradual deterioration of his left lung while on
active duty to the point where it was practically
nonfunctioning in 1989 caused cancer to develop in the
weakened lung. In view of the veteran's contention, his
records were forwarded to the Armed Forces Institute of
Pathology for an opinion as to whether there was any
etiological relationship between the carcinoma of the
veteran's left lung and his service-connected lung
condition. An October 1992 opinion by the Armed Forces
Institute of Pathology was obtained and reads as follows, in
pertinent part:
"This letter is in response to your
memorandum dated August 3, 1992,
requesting that the Armed Forces
Institute of Pathology review and render
an opinion regarding the following
question:
'Was the carcinoma of the veteran's
left lung identified in January 1990
etiologically related to the
service-connected lung disorder
based on its histologic
characteristics and other
information provided by the record?'
"[The veteran's] service connected
pulmonary disorder is classified as
"spontaneous pneumothorax, left
thoracotomy, seventh rib removal; cyst,
multiple, both lungs with fibrocystic
change, left lung: left upper lobectomy;
chronic obstructive pulmonary disease"
rated 30% disabling.
"We have received the following items for
review in the case of [the veteran],
social security #[redacted](C
[redacted]): Claims folder, medical
records including inpatient records from
the Veterans Administration Medical
Center, Shreveport, Louisiana 8/15/90 to
8/23/90, 1/16/90 to 1/30/90, and 1/3/90
to 1/11/90, outpatient records from
8/28/85 to 9/26/91, and a chest X-ray (PA
and lateral) dated 1/3/90. In addition we
have received 14 slides and accompanying
blocks bearing accession number [redacted],
VAMC, Shreveport, Louisiana. The
14 slides consist of 10 hematoxylin and
eosin stained sections, 1 special stain
for mucin, 1 positive control for mucin,
1 special stain (Periodic acid schiff),
1 positive control for the periodic acid
schiff stain.
"Review of the submitted documents
reveals that prior to his diagnosis with
lung cancer, [the veteran] had a history
of several episodes of spontaneous
pneumothorax. His first episode occurred
in the 1940s with several recurrences,
the last episode in 1956. In 1956, the
patient was hospitalized at Fitzsimmons
General where he underwent thoracotomy,
resection of the left seventh rib,
resection of a lung bleb (segmental
resection of the left upper lobe) and
pleurodesis. In October of 1989 a 2 by
3cm opacity was discovered in the left
upper lung. CT of the chest in November
1989 revealed a solitary 2.5 cm mass
located at the junction of the left upper
and lower lobes and situated posteriorly
along the vertebral column. A left
thoracotomy was performed on 1/18/90. At
operation the tumor was noted to be in
the superior segment of the left lower
lobe at the greater fissure, and appeared
to be eroding into the vertebra on that
side. A left pneumonectomy and chest
wall biopsy were performed. Pathology
report, dated 1/22/90 from Shreveport
VAMC (S90 165) showed the following
diagnoses:
'Chest wall biopsy: Metastatic
carcinoma, poorly differentiated.'
'Paratracheal lymph node: No tumor
is seen.'
'Left lung: Poorly differentiated
carcinoma consistent with
adenosquamous carcinoma.'
'Peribronchial lymph nodes, 11: No
tumor is seen.'
"Additional history obtained from review
of the chart also includes a 40 to 50
pack year history of smoking (quit in
1962), and history of chronic obstructive
pulmonary disease.
"Review of the 1990 pathology slides of
the left pneumonectomy from the
Shreveport VAMC ([redacted]) shows a poorly
differentiated adenocarcinoma within a
dense fibrovascular stroma. We did not
identify any definitive squamous
features. Mucin is identified within
tumor cells on the special stain for
mucin. Present focally within the tumor
are occasional giant cells which appear
histiocytic in origin. Examination of
the fibrous background under polarized
light reveals no birefringent material.
"The AFIP diagnosis (AFIP accession
number [redacted]) is as follows:
[redacted] Lung, left pneumonectomy:
Poorly differentiated adenocarcinoma.
"Although the tumor has a dense
fibrovascular stroma, this is
probably a host response to the
carcinoma. In the last 15 years a
number of studies have supported
this interpretation (1,2,3,4).
Studies comparing the fibrous stroma
of so called 'scar carcinomas" with
that of apical scars show a
qualitative difference in the type
of collagen present in these two
entities (3,4), and a further
difference in the cellular
composition (i.e., number of
myofibroblasts) present (3).
"In this case, the location of the
tumor in the superior segment of the
left lower lobe is separate from the
prior resection site of the pleural
bleb in the left upper lobe. There
is no reported increase, to our
knowledge, in the incidence of
adenocarcinoma in association with a
prior history of pneumothorax,
segmental or complete resection of a
lobe of the lung, or pleurodesis.
However, the relationship of lung
carcinoma to smoking is well
documented. As noted above, this
patient had a 40 - 50 pack year
history of smoking prior to quitting
in 1962.
In response to your question, it is
our opinion that [the veteran's]
lung cancer, diagnosed in January of
1990, is not etiologically related
to his prior service connected lung
disorders."
The Board has carefully reviewed the entire record and
concurs in the above opinion by the Armed Forces Institute
of Pathology that the adenocarcinoma of the veteran's left
lung has no etiological relationship to his
service-connected lung condition. Accordingly, under these
circumstances, service connection for the adenocarcinoma as
secondary to the veteran's service-connected lung disorder
would not be in order. 38 C.F.R. § 3.310.
With regard to the veteran's claim for an increased
evaluation for his service-connected lung disorder, the
record reflects that, when he was examined by the VA in late
1989, he reported shortness of breath and his chest showed
an increased anteroposterior diameter. Breath sounds were
coarse and rather distant. However, pulmonary function
studies showed only moderate obstructive ventilatory
impairment. The left chest scar from the thoracotomy was
reported to be well healed and nonsymptomatic. When the
veteran was again examined by the VA in April 1990 his
symptoms included left chest pain, a severe productive cough
and a substantial weight loss. However, this was, of
course, subsequent to his January 1990 surgery for the
adenocarcinoma of the left lung and the radiation therapy
that had been instituted thereafter. The increased
symptomatology was clearly associated with the
adenocarcinoma and surgery therefor and may not be taken
into consideration in evaluating the degree of severity of
the veteran's service-connected left lung condition.
Spontaneous pneumothorax warrants a 100 percent evaluation
for a period of six months. Thereafter, the residuals are
evaluated by analogy to bronchial asthma under the
provisions of 38 C.F.R. Part 4, Code 6602. 38 C.F.R.
§ Part 4, Code 6814.
A 30 percent evaluation is warranted for moderate bronchial
asthma manifested by rather frequent asthmatic attacks
(separated by only 10- to 14-day intervals) with moderate
dyspnea on exertion between attacks. A 60 percent
evaluation requires severe bronchial asthma manifested by
frequent attacks (1 or more attacks weekly) and marked
dyspnea on exertion between attacks with only temporary
relief by medication. More than light manual labor must be
precluded. 38 C.F.R. § Part 4, Code 6602. Under Diagnostic
Code 6603 a 60 percent evaluation is also provided for
pulmonary emphysema when that condition is severe.
In the Board's judgment, the evidence of record does not
establish that the manifestations of the veteran's
service-connected left lung condition alone are productive
of more than moderate disability. Thus, entitlement to an
evaluation in excess of 30 percent under either Diagnostic
Code 6602 or Diagnostic Code 6603 would not be warranted.
There is no indication that the left seventh rib removal has
caused any significant functional impairment. Thus, that
condition would not warrant entitlement to an increased
rating for the overall disability resulting from the
veteran's service-connected left lung condition. 38 C.F.R.
§ Part 4, Code 5297.
The Board does not find the evidence in this case to be so
evenly balanced that there is doubt as to any material
issue. 38 U.S.C.A. § 5107.
ORDER
Entitlement to service connection for postoperative
residuals of adenocarcinoma of the left lung is not
established. Entitlement to an increased evaluation for
postoperative residuals of a left lung disability with
chronic obstructive pulmonary disease is not established.
The benefits sought on appeal are denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
JAMES R. ANTHONY (MEMBER TEMPORARILY ABSENT)
WAYNE M. BRAEUER
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
(CONTINUED ON NEXT PAGE)
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.